BUTLER v. RYAN

The opinion of the court was delivered by: WILLIAM McCURINE JR., Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE
GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

This Report and Recommendation is submitted to United States
District Judge Marilyn L. Huff pursuant to 28 U.S.C. § 636(b)(1)
and Local Civil Rule HC.2 of the United States District Court for
the Southern District of California.

I.

INTRODUCTION

Petitioner Christopher Butler ("Petitioner") filed the instant
Petition for Writ of Habeas Corpus ("Petition") on March 22,
2005. [Docket No. 1]. On April 29, 2005, this Court issued a
Notice Regarding Possible Failure to Exhaust and One-Year Statute
of Limitations ("Notice"). [Docket No. 6]. Also on April 29,
2005, this Court dismissed the case without prejudice because
Petitioner failed to pay the $5.00 filing fee. [Docket No. 7].
The Court then reopened the case on June 23, 2005 as Petitioner
paid the filing fee. [Docket No. 9]. As Respondent S. Ryan
("Respondent") represented that the Petition could be decided
without the Court's reaching the merits on Petitioner's claims,
this Court ordered Respondent to file a motion to dismiss no
later than July 25, 2005. [Docket No. 9]. On July 25, 2005,
Respondent filed a Motion to Dismiss the case. [Docket No. 11]. On September
29, 2005, Petitioner filed a Motion to Dismiss the case. [Docket
No. 19].

II.

FACTUAL BACKGROUND

The following facts are taken from the California Court of
Appeal opinion in People v. Butler, No. D041819, slip op.
(Cal.Ct.App. Oct. 6, 2004). This Court relies on these facts pursuant
to 28 U.S.C. § 2254(e)(1). See Parke v. Raley, 506 U.S. 20,
35-36 (1992) (holding findings of historical fact, including
inferences properly drawn from such facts, are entitled to
statutory presumption of correctness); Sumner v. Mata,
449 U.S. 539, 547 (1981) (stating deference is owed to findings of state
trial and appellate courts).

The Planning Stage

Butler and his girlfriend Lisa Ramirez lived in a
room at George Calloway's house in Oceanside,
California, and Christopher Huggins lived in
Calloway's garage. Huggins's friend Robert Ortiz
lived across the street from Calloway's house.

On November 7, 2000, Ramirez, identifying herself as
Lisa Butler, went to the Bank of America and asked
employee Loretta Myers about opening a business
account. Ramirez reported that she and her husband
recently moved to the area and planned to open a
photography business with a $1.2 million lawsuit
settlement he expected to receive soon. Myers spoke
with Ramirez for about an hour, and Myers's desk was
about eight feet from the desk of the bank's manager,
Estey.

Butler told Calloway he was "planning on robbing
something" and "planning on staking out a bank."
Butler said he planned to go to a bank, watch the
bank manager for a couple of days and "stake out the
house." Butler also said "he would never have to go
in the bank, . . . his plan was to put a bomb on the
lady, and she'd go in the bank . . . [and] go in and
bring the money out." Butler planned to "threaten[]
her with her children." Butler purchased two-way
radios, and he, Ramirez and Huggins began testing
their range. Further, Butler sawed off pieces of a
broom handle, spray painted them red to resembe
dynamite and attached wires to them. He told Calloway
he planned to use the two-way radios and the fake
dynamite in the bank robbery. He also told Calloway
he believed Ortiz could provide some guns.

On November 20, 2000, Butler, Ramirez, Huggins and
Ortiz went to the apartment of Cassandra Stokes, a
friend of Ramirez's and a former co-worker of
Huggins. The apartment is a short distance from the
Bank of America. Butler, Ramirez, Huggins and Ortiz
left the apartment that evening, but they came back
later and Ramirez reported, "It didn't go right."
Butler and Ramirez carried two-way radios.

On November 21, Ramirez returned to the Bank of
America to open a business account. She gave Myers a
business card containing Butler's name and the name
of a photography business and showed her a portfolio
of photographs. Myers told Ramirez that Butler would
have to sign a signature card, and he came to the bank later that day to do so. He appeared
"startled and nervous," and he "was looking all
around the teller area." While he waited for Myers to
finish with a customer, Butler sat at Estey's desk
and spoke with her. He also gave Estey a business
card. Butler asked Myers whether the bank had ever
been robbed.

That afternoon Butler told Calloway he and Ramirez
"were going to stake out the house." Butler, Ramirez,
Huggins and Ortiz spent several hours at Stoke's
apartment before leaving at approximately 7:30 p.m.
Ortiz had his girlfriend's Rottweiler dog with him.

The Kidnappings

After picking up her daughter, Estey arrived home
about 7:00 p.m. on November 21. They lived in a
remote area and a Rottweiler that Estey had not seen
before was in her yard.

Estey and her daughter were curled up on the couch
when three men wearing black masks, hooded jackets
and gloves smashed through the locked back door and
rushed inside. Estey eventually recognized one of the
men as Butler because his eyes were "weepy and red."
Huggins and Ortiz were later identified as the other
two men.

Two of the men pointed their guns at Estey, who
begged them not to hurt her daughter. Huggins grabbed
Estey by the back of the head and slammed her onto
the floor. The men tied Estey's and B.'s hands behind
their backs with duct tape, and also taped B.'s
ankles together. B. shook with fear and asked the men
whether they were going "to kill my mommy."

Butler did most of the talking. He told Estey "they
had tracked" her for several weeks and "they were
there to get the money from the vault of the bank."
Butler questioned Estey about the bank procedures and
threatened to kill her and B. if she did not
cooperate. Butler warned Estey that if she "pull[ed]
anything" other people outside would kill them and
she would have to watch her daughter die first.
Butler showed Estey the fake dynamite and a supposed
detonating device that resembled a doorbell, and
said, "We're going to put this on you in the
morning." Ortiz pointed a gun at Estey and told her
not to move or speak. Estey heard Butler speaking
with a woman outside the house by two-way radio, and
the woman referred to him as "Chris." Estey though
she recognized the woman's voice as Ramirez's.

Oliver arrived home about 11:00 p.m., and when she
entered the front door Huggins grabbed her from
behind and placed a hand over her mouth. Oliver
screamed at the men to get out of the house, and
Butler "took his gun and stuck it right up her nose."
When Estey pushed Butler's hand away from Oliver, he
threatened to blow Estey's head off. Huggins and
Ortiz threw Oliver to the floor and taped her hands
and ankles. Ortiz let the Rottweiler in the house and
told Estey and Oliver the dog was trained to kill and
would kill them if they made any sudden moves or
tried to escape.

The men remained in Estey's home all night. In the
morning, Butler ordered her to get ready for work,
and to wear loose clothing and a jacket. The men
taped the fake dynamite to the backs of Estey, B. and
Oliver and displayed a supposed detonator devise with
a "10-mile radius." Butler warned the hostages: "Do
not go outside the house. If you try to run, you will
disintegrate. If you try any funny business, you will
all be killed." The men took Oliver into her bedroom,
which they had ransacked, and having untaped her
earlier, taped her hands behind her back, her feet
together and her eyes and moth shut. The men put B.
in a closet and taped her legs together and her
mouth.

In B.'s presence, Butler told Estey, "you have about
10 minutes to say whatever it is you'd want to say to
your daughter, because it might be the last thing you
ever say to her if you screw up." Butler handed Estey
her briefcase and told her to put they money from the bank in a gym
back inside of the briefcase, and not to include any
"funny money" or "any of that stuff that explodes."
Holding his gun and a two-way radio, Butler told
Estey it was "time to go the work." Butler ordered
Estey to drive to the bank in her Jeep with him
crouched in the back seat.

The Robbery and Aftermath

Estey parked in the Bank of America lot shortly after
Myers and another employee, Janet Becerril, arrived
for work around 8:30 a.m. Butler told Estey, "You've
got five minutes from the time that truck leaves that
brings the money to get out of that bank and get back
in the car." Butler told Estey not to make any
telephone calls and warned her, "We can see what
you're doing and hear everything that goes on in the
bank."

The bank was not yet open for business, and Estey
entered it by using her keys. Estey was usually
"bubbly" and "very vivacious," but she ignored Myers.
The Brinks truck arrived and a guard delivered cash
to the vault. Estey then took the briefcase into the
vault, where she pulled the gym bag out and began
stuffing cash into it. She told Becerril, who was
also in the vault, about the hostage situation and
that B.'s and Kim's lives were in danger. Estey
showed Becerril the "dynamite" and insisted that she
not notify the authorities until Estey gave her okay.
Estey left the bank, telling Myers she would
telephone later. Becerril then told Myers what
happened, and Myers called the police.

Estey returned to her Jeep with the cash, and Butler
directed her to drive to a cul-de-sac near Stokes's
apartment. Butler told her to get out of the car and
slowly walk to another location where he would leave
the Jeep. Estey followed his directions, found the
Jeep and drove home. Huggins and Ortiz had left in
Oliver's car, and before leaving they removed the
fake dynamite from B. and Oliver. Estey cut the tape
off B. and Oliver, and removed the fake dynamite from
Estey's back and put it outside on a retaining wall.
She, Estey and B. then ran to a neighbor's house and
asked him to call 911. Estey telephoned Myers and
explained what happened and told her Butler was one
of the men involved. Later that day Estey talked to
another bank employee and asked her to tell the
police of Butler's involvement and ask them to check
her desk for his business card.

The afternoon of November 22, Butler and Ramirez went
to Stokes's apartment and left $10,000 in cash under
her pillow. That evening, they took a locked safe to
Stokes's apartment and asked her to hide it. Ramirez
told Stokes the safe contained $100,000 and two-way
radios. According to Stokes, she got a friend to take
the safe and she never saw it again.

On November 23 Butler bought six round trip plane
tickets for that day to Atlanta, Georgia, for $2,000
in cash, for himself, Ramirez, her children and
another person. On November 29 Butler and Ramirez
returned to California, and on December 1 police
arrested them as they drove away from the vicinity of
Stokes's apartment in Ramirez's car. In the car were
Bank of America documents with account numbers and
Myers's name written on them; a two-way radio; black
gloves; a wool cap with the eyes cut out; black nylon
pants; a detached doorbell; a gym bag containing the
type of nylon straps banks use to bundle cash; a card
on which "Bank of America," "November 20," "$20,000"
and a teller's number were stamped; four credit cards
in Oliver's name; and three credit cards in Estey's
name. In Stokes's apartment police found spears,
binoculars and a camera. Oliver identified the mask,
gloves and nylon pants as clothes Butler wore and the
binoculars and camera as items taken from her
bedroom.

At Calloway's house police found a black knit cap
with eye holes cut out, gloves, a revolver, pieces of
wood dowel and cans of red spray paint containing Butler's fingerprints. The composition of the paint
matched the paint on the fake dynamite. The fake
dynamite taped to Estey contained Butler's
fingerprint in the red paint.

B. told investigators that three masked men broke
into her house, and she demonstrated where the fake
dynamite was taped to her back. Additionally,
investigators found pieces of duct tape throughout
Estey's house, some of which had Oliver's hair
attached to it.

In December 2000 Huggins' girlfriend notified the FBI
she found a safe on the side of her house. It
contained $93,100, which was returned to Bank of
America. In February 2001 Ortiz was arrested in
Wisconsin. FBI agents found a safe in his residence
that contained $32,855. That cash was also returned
to Bank of America.

Petitioner then appealed. In an unpublished decision, the Court
of Appeal, Fourth Appellate District, Division One, reversed the
Judgment on count 1 on the grounds of instructional error and the
sentence in count 6 because pursuant to Blakely v. Washington,
___ U.S. ___, 124 S. Ct. 2531 (2004), a trial court is precluded
from making findings on aggravating factors in support of an
upper-term sentence. (Lodgment 2 at 24-28.) The Court remanded
the matter for resentencing. (Lodgment 2 at 26, 28.)

On November 8, 2004, Respondent filed a Petition for Review
regarding the Blakely issue. (Lodgment 4.) On or about November
13, 2004, Petitioner filed a Petition for Review with the
California Supreme Court with the claim that requiring him to
wear a stun belt violated his Sixth Amendment rights. (Lodgment
3.) On December 22, 2004, the California Supreme Court granted
Respondent's Petition for Review, deferring any action on the
case pending consideration of a related issue in two other cases
involving the Blakely issue. The California Supreme Court
denied Petitioner's Petition for Review. (Lodgment 5.) To date,
Petitioner's Blakely claim is still pending in state court. A
remitittur has not yet been issued in Petitioner's state court
appeal.

IV.

LEGAL STANDARD

Principles of federalism and comity require this Court to
abstain from considering the merits of a Petition for Habeas
Corpus under Younger v. Harris, 401 U.S. 37, 91,
1185 S. Ct. 746, 27 L. Ed. 2d 669 (1971) if a Petitioner's state court direct
appeal is still pending. See Roberts v. Dicarlo
296 F.Supp.2d 1182, 1185-1186 (C.D. Cal., 2003). Federal habeas corpus review
is generally not available for issues that are currently pending
in a state trial court. See Carden v. Montana, 626 F.2d 82,
83-84 (9th Cir. 1980), citing Younger v. Harris,
401 U.S. at 37. Unless there are unusual circumstances, federal courts
should refrain from interfering with state court trials. See
Santamaria v. Horsely, 133 F.3d 1242, 1243-44 (9th Cir.
1998).

The abstention doctrine applies when a federal habeas
petitioner has a request for relief pending in a state appellate
court. The Ninth Circuit explained that when an appeal of a state
criminal conviction is still pending, a potential habeas corpus
petitioner must await the outcome of his appeal before his state
remedies are exhausted, even where the issue to be challenged in
the writ of habeas corpus has been fully settled in the state
courts. Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983).
If a petitioner challenges a judgment in federal court when the
state appeal is still pending, there is a failure to exhaust.
Even if the federal issue is not involved in the state appeal,
the appeal could result in a reversal on a different ground,
thereby mooting the federal proceedings.

V.

ARGUMENTS

A. Respondent's Arguments

Respondent recognizes that Petitioner did present his current
claim to the California Supreme Court through a Petition for
Review and a Petition for Writ of Habeas Corpus. (Resp't P.&A. at 5.) Respondent continues that this Court should
however abstain from reviewing the case as Petitioner's direct
appeal is currently pending in state court. (Id.) "The
California Court of Appeal had reversed the judgment on count I
and remanded the case for resentencing on count 6 based on
Blakely error. Petitioner has not completed his direct appeal
from his sentence because there is a Petition for Review, filed
by Respondent, in the California Supreme Court pending
disposition of the lead cases on the Blakely sentencing
issues." (Id.) Respondent concludes that Petitioner's case
would still have to be sent back to the California Court of
Appeal before becoming finalized and Petitioner has not shown any
extraordinary circumstances indicating that he will suffer
irreparable harm if this Court abstains until his direct appeal
is completed. (Id.)

B. Petitioner's Arguments

Petitioner's Motion to Dismiss states in its entirety:

On July 25, 2005, Respondent filed a motion to
dismiss the said case because of unexhausted claims
still pending in state court. Petitioner wish's to
dismiss with the stipulation of without prejudice
to exhaust all unexhausted claims, so Petitioner may
raise the issues in the future. Respondent has shown
state remedies are not exhausted.

(Pet'r Mot. at 1.)

VI.

DISCUSSION, CONCLUSION, AND RECOMMENDATION

No party disputes the fact that Petitioner's direct appeal is
still pending in state court. As the principles of federalism and
comity require this Court to abstain from considering a petition
for habeas corpus when a Petitioner's state court direct appeal
is still pending, this Court should not review the merits of the
Petition in question. No party has presented any evidence of
unusual circumstances which would justify this Court's
interference with state court proceedings.

Therefore, IT IS RECOMMENDED that Respondent's Motion to
Dismiss and Petitioner's Motion to Dismiss be GRANTED and the
Petition is DISMISSED WITHOUT PREJUDICE. IT IS SO ORDERED that no later than November 30, 2005, any
party to this action may file written objections with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall
be filed with the Court and served on all parties no later than
December 14, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's order. See Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v.
Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).

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